SZTOK v Minister for Immigration

[2015] FCCA 446

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 446

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider one of the applicant’s claims.

Legislation:

Migration Act 1958, ss.36, 414, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
SZRPA v Minister for Immigration & Citizenship [2012] FCA 962
SZQFR v Minister for Immigration & Citizenship [2013] FCA 574
SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26

Applicant: SZTOK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2916 of 2013

Judgment of: Judge Cameron

Hearing date: 24 February 2015

Date of Last Submission: 24 February 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

Counsel for the Applicant: Mr J.R Young

Solicitors for the Applicant: Shamser Thapa & Associates

Solicitors for the Respondents: Ms D. Watson of Australian Government Solicitor

ORDERS

1. The application be dismissed. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2916 of 2013

SZTOK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal who arrived in Australia on 13 March 2007 as the holder of a student visa.  On 29 February 2012 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in Nepal because she had been in a de facto marriage in Australia.  On 19 July 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these proceedings for judicial review the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out in the Tribunal’s decision.  As summarised by the Tribunal, the applicant relevantly made the following claims:

   a)she was a Hindu from the Kathmandu Valley in Nepal;

   b)she had been living with her then-partner (“partner”) in Australia;

   c)her parents had not been happy about her living with her partner but accepted it because she told them that she intended to marry him.  She visited Nepal with her partner in December 2010 and her parents were happy to meet him but his mother did not approve of her.  Her parents had wanted them to marry during their visit but her partner and his parents had not been ready to take that step;

   d)her relationship with her partner ended in late 2011.  If she were to return to Nepal, she would not be accepted by her family or by society as she had committed a “religious crime” as living with a member of the opposite sex outside marriage was unacceptable in Nepal, although not illegal;

   e)her parents were middle-class with conservative views typical of Nepalese parents and were very upset with her.  Should she return to Nepal, they would not treat her as they had before she left as she had ruined their reputation and she would suffer because they had suffered a lot from their neighbours and family members;

   f)she continued to be in frequent contact with her parents and had not been ostracised by them.  Her extended family members had known that she had been in a relationship with a man; a few knew of her living arrangements and were not happy about the situation;

   g)there had been many cases of young women being “punished to death” by their families for having affairs or for having lived with a man outside marriage and the authorities could not protect her.  People would say bad things about a young women who had lived with a man outside marriage and it would be impossible to “get another boy or get married again”;

   h)if she were to return to Nepal, her parents might allow her to live with them but it would be very difficult and uncomfortable as she would be living there as an unmarried woman and there was no tradition of a daughter staying in the family home.  She would find it hard to live alone as a single woman in Kathmandu as there was a lot of violence and people wanted to “take advantage”; and

   i)if she were to return to Nepal, members of the community in her hometown would not speak to her and would talk about her behind her back.  She would not be accepted as a normal person and other family members would distance themselves from her and not be responsible for her.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal accepted that the applicant had been truthful in her claims, that it was a matter of discomfort to the applicant’s parents that she chose to live with a man outside marriage and that she was very distressed about the situation.  It also accepted that the applicant felt that she had brought shame on her family and might suffer mental distress due to gossip, disapproval and discrimination from some members of her extended family and the local community. 

3. However, it did not accept that, even taken cumulatively, her claims amounted to a well-founded fear of persecution or significant harm.  In this connection the Tribunal noted that the applicant continued to be in regular contact with her parents and had indicated that her parents loved her.  It also noted that neither they nor anyone else in her extended family or in the community had expressed any intention to her or to her family of harassing, ill-treating or harming her in any way and she had not been subjected to harm amounting to persecution during her visit to Nepal in 2010. 

Proceedings in this Court

1. The applicant’s application was filed out of time but on 24 February 2015 I ordered that the time for the commencement of the proceedings be extended to the day on which the application was filed.

2. In her amended application the applicant alleged:

   3.The Second Respondent made jurisdictional error by constructively failing to deal with the Applicant’s claim to fear harm even death from family, relatives and society.

   4.The Second Respondent misconstrued the Applicant’s pre-hearing claims by stating at [31] that prior to the hearing the Applicant had stated that she did not fear being arbitrarily deprived of her life whereas in fact the Applicant had made claims at CB 8 and 9 directly opposite to this.

3. The first and second allegations made in the amended application were not pressed.

Ground 3

Submissions

1. As refined in written submissions, the argument raised by the applicant in the third ground of the amended application was that she:

   … had claimed that society would “punish” her, even possibly kill her: CB 9.  The RRT simply had not dealt with this.

   …

   The only qualification she expressed to this claim at the hearing was at [11] that her “parents” had never threatened her.  This did not deal at all with the claim that she feared other relatives and society generally might kill her or harm her.

   At the hearing of this application the applicant’s case was narrowed further to rely only on her claims concerning Nepalese society.

2. The applicant referred to statements which she had made in her protection visa application that:

   … I fear of my life …

   … My family, relatives and society … will punish me …

   … The girl has to face punishment from family, relative and society …

   … Sometimes, the punishment would be the death. …

3. The applicant submitted that at no point had she abandoned her claim to fear that she would suffer harm and even death in Nepal because she had been in a de facto marriage.  However, the Minister submitted that, in fact, that was precisely what the applicant had done as early as her interview with the delegate who recorded her claims in the following terms:

   At interview she clarified that the harm she feared was that her life would be made more difficult as a single woman living in Nepal.  Her family did not threaten to harm her physically but believed it would be better for her if she did not return.  She remains in contact with her parents and brother regularly (once or twice a month by telephone) but claims that her relationship with them has diminished in quality since her relationship ended and the marriage did not take place.  She indicated that the pressure of the social disgrace could lead her to consider suicide.  She claims that society will look down upon her and that she will be unlikely to ever marry now that she has lived with a man outside marriage.  When asked what would happen to her if she returned to Nepal, the applicant replied:

   “First of all, if I visit my parents they’re not going to treat me as they used to before I left.  They don’t respect me at all, they think that I’ve ruined their reputation and respect in the society.  They have to hear lots of things from them because of me.  If I go back they will have to suffer and with them I will have to suffer a lot.”

   The applicant claimed that in Nepal, girls are not allowed to live with men outside marriage and doing so meant that the girl had a bad character which could lead to society torturing them.  When asked to explain what she meant by “torture” the applicant replied that this means “telling bad things about the girl, especially who lives with the man without getting married.  And once it happens, for the girl it is impossible to get another boy or get married again.”

4. In addresses the applicant argued that although the form her claim had taken before the Tribunal was different from the form in which it had been presented in her visa application, the Tribunal had been obliged to consider both expressions of her claim and that by dealing only with the later one it had erred.  She submitted that she had not (expressly or by necessary implication) abandoned her claim to fear being killed and the Tribunal should have considered it.

Consideration

1. The applicant’s claim always was that she would suffer Convention-related harm in Nepal because she had been in a de facto marriage.  However, the harm the applicant claimed to fear changed over time and I accept that by the time she was interviewed by the delegate she no longer claimed to fear being killed.  The Tribunal’s summary of the evidence before it, principally set out at paras.4 to 18 of its reasons, indicates that the applicant presented her case to it in the same fashion as she had presented it to the delegate.  Regrettably, the Tribunal’s reasons are far too concise and as a result fail to provide necessary detail about the evidence before it.  Specifically, it is difficult to discern in respect of every element of the evidence cited by the Tribunal when in the visa process it was provided. 

2. Doing the best I can without a transcript, I infer from the Tribunal’s decision record that it put to the applicant the alleged information contained in her protection visa application form:

   … that in many cases in Nepal girls have been “punished to death” by their family or relatives for having an affair or living with a man outside marriage and that the authorities cannot protect her …

   and that she then said to it that:

   a)her parents had not threatened or ostracised her and she was still in regular and frequent contact with them;

   b)members of her extended family who knew of her de facto relationship were “not happy” about the situation;

   c)the local community would say bad things about her; and

   d)she would find it impossible to find a husband.

3. I find that her response to the Tribunal in relation to the reaction from her local community was to the effect that:

   … no one would respect her and there would be a lot of backbiting.  She would not be accepted as a normal person.  Other family members would not speak to her properly because of what had happened.  By this she meant they would distance themselves from her and not be responsible for her. 

4. What that exchange demonstrates is that the Tribunal put to the applicant the claim on which the present allegation is based and that, in response, she indicated that the harm she claimed to fear from the Nepalese community beyond her family was different from the harm she had originally claimed to fear. 

5. The Tribunal is required by s.414 of the Act to consider an applicant’s claims and to make a decision without having considered all the claims and their integers is to fail to complete the exercise of jurisdiction: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 [42], in case.

6. The nature of a claim or an integer of a claim was discussed by Allsop J in Htun:

   If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation — that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The tribunal did not deal with the latter basis of the appellant’s sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier. (at 259 [42])

7. His Honour pointed to an applicant’s conduct, experiences and characteristics as the matters which would identify a claim but did not discuss whether the question of harm was an essential element of a claim for protection.  That question was not a matter in issue in that case. 

8. The nature of the harm claimed to be in prospect is an essential element of an application for protection because, if it does not amount to “serious harm” or “significant harm”, the application will not meet the criteria for the grant of a protection visa.  Consequently, it is possible that one set of facts may support more than one claim or integer of a claim because it may give rise to more than one potential form of harm.  For instance, an applicant may claim that unpopularity with their government gives rise in his or her case to the possibility of severe physical harm, an inability to subsist and a risk of being subjected to degrading treatment.  The decision-maker must treat each of those alleged possibilities as a separate claim and deal with it individually because each allegation may meet one of the tests of harm whose satisfaction is a precondition to the grant of a protection visa.  Consequently, if an applicant says at one point that he or she faces the possibility of one form of harm because of something about his or her conduct, experiences or characteristics but later says that he or she faces a different form of harm, the decision-maker must consider both unless the applicant abandons one in favour of the other.

9. The Tribunal’s decision record indicates in para.13 that the Tribunal put a direct question to the applicant concerning the harm she claimed to fear from the local community and she provided the response quoted above at [17]. To the extent that the applicant had not already at her interview with the delegate abandoned her original claim to fear being killed by her local community, I find that this response amounted to an abandonment by the applicant of that claim and to the making of a claim to fear a sort of discrimination or ostracism instead.

10. It is also important to note in this connection that there is no evidence that the applicant or her representative, having received the delegate’s decision record, sought to revive before the Tribunal the original form of her claim concerning her local community.  In the absence of compelling reasons to conclude otherwise, where an applicant is professionally represented, as was the case here, it must be assumed that the claims which the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed.  If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57]; SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37]. Moreover, as it is a matter of the applicant’s choice the Tribunal need not, contrary to the applicant’s submission, comment on or enquire after the fact that a claim has been abandoned. Relevantly, its obligation is only to consider the claims which are on foot at the review stage.

11. I find that the Tribunal did not err by reaching its decision based on the form in which, at its hearing, the applicant had pressed her claim.

12. But in any event, I infer that the Tribunal did have regard to the applicant’s claim to fear being killed in Nepal.  Its statement concerning young Nepalese women being “punished to death”, an expression used by the applicant in answer 43 in her visa application form, had no relevance except as a reference to the applicant’s original claims to fear such a fate.  By drawing on the very expression employed by the applicant in her visa application form, the Tribunal demonstrated its awareness of the way in which the applicant had initially framed her claim.  The applicant’s evidence at its hearing relieved it of the need to make any express finding on the question and so the fact that no such further reference was made does not persuade me that the Tribunal failed to consider her claim to fear harm, specifically death, at the hands of Nepalese society.  Simply put, it asked her about that claim and, as she implicitly said that she no longer feared being killed, the Tribunal did not need to canvass that issue in its reasons.

Ground 4

1. The fourth ground of the amended application concerned an alleged misapprehension by the Tribunal of the applicant’s claims concerning whether she feared being arbitrarily deprived of her life.  She referred to the following statement appearing in para.31 of the Tribunal's reasons:

   The applicant confirmed that she does not fear being arbitrarily deprived of her life or facing the death penalty.

Consideration

1. Again, the brevity of the Tribunal’s reasons is unfortunate.  It appears that the Tribunal canvassed with the applicant the various sorts of harm which can amount to “significant harm” for the purposes of the complementary protection criterion.  This inference is strengthened by the Tribunal’s statement at para.17 of its reasons:

   The criteria for Complementary Protection including the definition of “significant harm” were explained to the applicant.  In response she said that when society did not accept her she would feel mental pressure so that her health would deteriorate.  She would face mental torture.  “People’s talk” was like a punishment.

2. I conclude that what the Tribunal said in para.31 of its reasons was simply a factual statement of how the applicant presented her claims at the hearing.  It may be that the applicant believed that “arbitrary deprivation of life” did not include death at the hands of non-state actors and so gave an answer whose significance she did not fully appreciate.  However, the applicant did not make any argument to that effect and there was no evidence adduced which would have supported it.  In any event, I have found that the Tribunal was aware of and did not fail to have regard to the applicant’s claim to fear being killed in Nepal.

3. Finally, contrary to the applicant’s submissions, I do not think that too much should be made of the Tribunal’s use of the word “confirmed” because it is commonly and mistakenly used as a synonym of “stated” or similar words.  But it seems likely that the word was used correctly, although again the issue would be clearer were it not for the brevity of the Tribunal’s reasons.  In light of the delegate’s record of the applicant’s claims at that stage of the process, the repetition before the Tribunal of a fear of a sort of discrimination or ostracism, rather than death, at the hands of her local community was indeed a confirmation of her revised presentation of her claim before the delegate.

4. For these reasons, I find that the Tribunal did not misapprehend the applicant’s claims. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  5 March 2015